How Does 'Prosecutorial Discretion' on Immigration Work? Not Very Well, Charges Inspector General

WASHINGTON – The inspector general for the Department of Homeland Security maintains the various agencies responsible for enforcing immigration laws are doing an erratic job of exercising prosecutorial discretion in such cases and recommended that guidelines be issued to make the system more efficient.

John Roth appeared at a joint hearing of the Subcommittee on National Security and the Subcommittee on Health Care, Benefits and Administrative Rules and noted that while the U.S. Immigration and Customs Enforcement relies on prosecutorial discretion to prioritize enforcement resources, the service “often does not collect prosecutorial discretion data and does not always ensure its statistics are accurate and complete.”

The result is a wide variance in the results of some cases.

“ICE records its use of prosecutorial discretion broadly, without distinguishing the various types of exceptions to removal, such as Deferred Action for Childhood Arrivals-related exceptions,” Roth said. “Additionally, prosecutorial discretion statistics may be inaccurate because enforcement officers may not document every encounter with aliens it considers to be a low enforcement priority.”

ICE officials reported that field office personnel do not always record their use of prosecutorial discretion because it is too time consuming, Roth said. ICE officials also said that they may use prosecutorial discretion at various points in the removal process, which would result in multiple records for the same person. As a result, data to support decisions to use prosecutorial discretion on low-priority aliens may not be available.

“The department does not collect or use the full range of prosecutorial discretion data to help assess immigration policy, evaluate the effectiveness and results of enforcement actions or to be able to assess the reasonableness of the exercise of that discretion on the part of DHS personnel,” he said.

Roth said the Department of Homeland Security also does not collect other prosecutorial discretion-related data that might help immigration efforts.

“For example, DHS would benefit from capturing information regarding aliens who are granted prosecutorial discretion and later commit a crime or pose a threat to national security and public safety,” Roth said.

Immigration officials assert that finite resources render it impossible for them to respond to all immigration violations or remove all persons illegally in the United States. The Department of Homeland Security therefore exercises prosecutorial discretion, defined as the authority of an agency or officer to decide whether to enforce immigration laws, and if so, to what extent.

Immigration and Customs Enforcement, for instance, employs prosecutorial discretion when determining whom to stop, question, arrest and remove from the country. Since DHS’ formation in 2003, ICE has implemented various policies to focus its efforts on criminal and civil enforcement priorities. It has also issued policies for processing aliens with special circumstances, such as crime victims and witnesses, nursing mothers and the elderly. The agency also takes care to ensure that enforcement actions are not focused on sensitive locations such as schools and churches.

Roth told lawmakers that the Department of Homeland Security has agreed with recommendation issued by the inspector general’s office to improve collection, analysis, and reporting of data on the use of prosecutorial discretion. The department, he said, is “planning a multi-pronged approach for assessing and accounting for its immigration enforcement efforts.”

Roth noted that over the past two fiscal years, ICE, U.S. Customs and Border Protection and the U.S. Citizenship and Immigration Services collectively received, on average, about $21 billion annually.

“The department must spend this significant investment efficiently and make decisions based on the best available information,” Roth said. “The department also relies on prosecutorial discretion to focus resources and has implemented a number of prosecutorial discretion policies -- data analysis is essential to developing sound future immigration policies.”

By analyzing prosecutorial discretion data, he said, DHS “could potentially strengthen its ability to remove aliens who pose a threat to national security and public safety.”

An estimated 11.5 million removable aliens are residing in the U.S., roughly equivalent to the population of Ohio, including individuals who may pose a risk to public safety or national security. According to ICE, DHS removed or returned a total of 577,295 aliens in fiscal year 2014, focusing on those who pose the greatest risk to the nation’s safety.

Sarah Saldana, the director of U.S. Immigration and Customs Enforcement, told lawmakers that ICE and other law enforcement agencies “have only enough resources to go after a fraction of the individuals whom they suspect of violating the law, so they have to make choices.”

“Prosecutorial discretion is a long-established, widely-used practice in every area of law enforcement today,” she said. “ICE will continue to do the best job we can within the bounds of existing law and policy to accomplish our mission and employ new initiatives to improve efficiency and reporting.”

Saldana noted that DHS Secretary Jeh Johnson “has made it clear that our borders are not open to illegal migration, that individuals apprehended crossing the border illegally are an enforcement priority, and that ICE should allocate enforcement resources accordingly, consistent with our laws.”

ICE, she said, is “endeavoring to use appropriate prosecutorial discretion and is dedicating resources, to the greatest degree possible, toward the removal of individuals who are considered enforcement priorities, which includes recent border entrants as well as individuals who have been convicted of felonies, those who have been convicted of significant or multiple misdemeanors and those actively and intentionally engaged in gang activity.”

Saldana said the agency hopes to have a system-wide process in place sometime this year. But in the meantime, noted Rep. Steve Russell (R-Okla.), “Unfortunately, as times moves by, we see some drastic consequences.”

The gaps, Russell said, “weaken immigration enforcement efforts.”

“Within the constructs of enforcing the law and doing these things that we must do, we can’t just let policies, political, regardless of administration, take away our immigration process and result in the crimes we are discussing, penetration of our borders that weaken our national security and could open us up even to terrorist attack.”